August 6, 2018

In a claim with a series of facts worthy of a long-running soap opera saga, Mr Justice Nicklin has upheld a decision by Master Yoxall that a claim for misuse of private information and breach of confidence was an abuse of process.

The claimant, Harlow Higinbotham (formerly BWK), was a US citizen. In the early 2000s he was working in South East Asia where he met the first defendant, Wipaporn Teekhungam, a Thai national. They began a relationship and married in a Thai ceremony in 2004. That marriage was not registered. Mr Higinbotham was, in fact, already married to a US woman.

In November 2008, Ms Teekhungam gave birth to triplets following IVF treatment she had undergone with Mr Higinbotham.

Mr Higinbotham was keen for his US wife, family and friends not to find out about his “marriage” to, and sons with, Ms Teekhungam.

In 2009, the relationship between Ms Teekhungam and Mr Higinbotham began to break down, resulting in protracted litigation in both Thailand and the US concerning, principally, child support payments (or lack of them) by Mr Higinbotham.

The case in the UK involved a Facebook profile that Ms Teekhungam had created in 2014, while the US proceedings were still ongoing, which effectively amounted to a profile of Mr Higinbotham. It consisted of a narrative timeline of events in Mr Higinbotham’s life and included a photograph of Mr Higinbotham and Ms Teekhungam sitting together with the triplets on their laps.

Mr Higinbotham issued proceedings in the UK claiming that the Facebook profile was a misuse of private information, breach of confidence and/or a breach of the Data Protection Act 1998, and seeking an injunction and damages.

The application came before Master Yoxall, who found that the claim was an abuse of process: (i) as brought for a collateral purpose; and (ii) within the principle of Jameel v Dow Jones & Co [2005] QB 946. Accordingly, he struck out the entire claim. Mr Higinbotham appealed.

Mr Justice Nicklin found that Master Yoxall had been correct to find the claim an abuse of process. In Nicklin J’s words, “the claim also has a total absence of reality … and its continued litigation would bring the administration of justice into disrepute”.

The whole premise of the claim was that, by posting the Facebook profile, Ms Teekhungam had made public what she had agreed to keep secret. However, Nicklin J held that by pursuing the litigation in both the US and Thailand so vigorously, Mr Higinbotham had chosen to place all the supposedly private information in the Facebook profile into the public domain. He said that the situation was different to that of the position in PJS v News Group Newspapers [2016] AC 1081, where there had been substantial publicity in foreign and Scottish media of the private information the claimant had sought to protect, because in that case it was not the claimant who had put the information into the public domain, but the media. In terms of the misuse of private information claim, Mr Higinbotham therefore had no real prospect of establishing that he had a reasonable expectation of privacy in the information in the Facebook profile.

As for breach of confidence, Nicklin J noted that it is an essential ingredient of the cause of action that the information has the necessary degree of confidence. In this case, any confidence in the information in the Facebook profile had been “comprehensively exhausted by the Thai and US litigation”.

Nicklin J also found that there was almost no prospect, even if the claim were successful, that the court would grant an injunction, nor would it award significant damages. Any sum awarded would, compared to the wealth of Mr Higinbotham, or to the costs of the proceedings, “be trifling”.

Nicklin J concluded that the claim was Jameel abusive, and had not been brought for any legitimate reason, but as an act of harassment or revenge against Ms Teekhungam. Objectively judged, the action served no purpose and could provide no real or tangible benefit, he said. Further, there was no real harm or substantial wrong. For example, there was no evidence that anyone beyond Mr Higinbotham’s attorneys had seen the Facebook profile and it was taken down only a day after it was posted. In addition: (i) the expenditure of costs was “utterly disproportionate” for no real gain; (ii) the conduct of the proceedings showed that Mr Higinbotham was not pursuing them for any legitimate purpose; and (iii) Mr Higinbotham had already been found, in the US proceedings, to have used his wealth to try and exhaust Ms Teekhungam’s legal representation. Master Yoxall had therefore been right to find that the claim was not “worth the candle” and the appeal was dismissed. (Harlow Higinbotham (formerly BWK) v Wipaporn Teekhungam [2018] EWHC 1880 (QB) (24 July 2018) — to read the judgment in full, click here).